The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-05-04

which she was n cestui que trust the trust deed
giving her such power.
All Of these cases, however, werc decided
before the amendment OF 1882 to the Act oi
1870 by which the important words: "As to
her separate estate" were inserted, and when
there was no doubt, these words being absent
that a married woman by the force and effect
Of the Act had all the powers OF femme sole
as to making contracts. Ofcourse, then, she
could become surety for her husband or fol
any one else, or she could execute mortgage
or any other paper that femme sole could
execute.
We come next to Habenicht VS.. Rawls and
WilhalL This Is q recent decision, and sinca
the amendment of 1882. 1t was case IN
which Mrs. Agnews, u married woman, en-:
dorsed certain notes made by Rawls and
Wilhalf, In discharge of lien which the
payee OF said notes held OH q stock of goods
Of Rawls and Wilhalf. The question in the
case was, could she be made liable on her en-
dorsement2 This Court held that while be
fore the amendment, 1882, to the Act of 1870
and in accordance the cases mentioned above
had the Endorsement been made then, She
would have been responsible, yet thnt now
held liable, as that amendment limited hei
power exclusively to contracts the object o
which was to affect directly her separate
estate, as ontradistinguished from n con
tract with an intention merely to bind sale
separate estate. Mr.. Justice Mc1yer, closing
q most carefully considered opinion for the
Court in these words:
"If, therefore, wife should sign q note al
surety for her husband, or, indeed, for any
other person, and should declare in the note
in express terms, her intention to bind hel
separate estate, that wonld not make the con.
tract valid as to her, unless 1t was made te
appear that the contract, though executed by
her as surety, was designed to benedt hel
separate property, or In some way related U
or concerning such property" This case, w
think, Is conclusive Of the question.
We have not referred to cases decided tr
other States, for the reason that the question
involved Is mainly statutory. And as thu
statutes OF the different States differ mater
tally In their provisions, the cases construinl
them elsewhere could give us no aid here.
It Is the judgment Of this Court that tn!
Judgment of the Circuit Court be reversed
and that the case be remanded, with leave t.
against aga the defendant, ]. n. Rush, for th'
amount due on the note.
concur. Henry McIver, A. j.
Filed April 20, 1887.
Messrs. Graydon & Graydon for appellants
Messrs. Perrin d Cothran, Sheppard BrotEer
for respondents.
DISSENTING OPINION BY MCGOWAN, A.
cannot concur In this Judgment. I am 81
much dissatisfied with it that had INTENDED
to express my views upon The subject at SOM
length, but find myself under such circum
stances as not to be able to do 1t at this time
Considering, however, Its great Importance,
cannot consent to let 1t pass without indtcat
Ing at least the heads of my objections.
It seems to me that the opinion proceed ta tS
common law as the basis Of construction in
stead OF to the Constitution Of 1868, which, o.
I conceive, was intended to supersede the ole
common law doctrine as TO the rights Of mar
ried women, which as to property, substan
TALLY merged the existence Of the vile intt
that OF her husband, and to substitute there
to msed eP
not only as to the power OF acquiring
and holding property in her own right, but alst
as to the corresponding power TO dispose OF 1t
The power to hold the FEE, as rule, carries
with 1t the inherent right to the jus disponen
di and when 1t was considered wise to make
q great change as to the power OF acquiring 4
was not unnatural that there should come
with 1t corresponding change as to the pow
of the other, otherwise the power to receiv,
and hold, without the power Of disposal
would have In 1t something Of that elemen
which made the mortmaln laws 80 objection
able.
The provision Of the Constitution is as fol
low: THE real and personal property OF {
woman, held at the time of her marriage, o.
that which she may thereafter acquire, eithe
by gilt, grant. inheritance, devise, or other
wise, shall not be subject to levy and sale TO
her husbands debts, but shall be held as he
separate property, and may be bequeathed
devised or alienated by her, the same as II sh'
were unmarried" &c. would ask II there IL
familiarity with the common law doctrine
who can read this provision as whole with
out being perfectly satisfied that the purpose
was three-told first, 10 supersede the com
Inx. hu n m n
the power to acquire and hold property In hel
own right; second, to protect that property
from, not her own, but her husbands debts
and third, to give her the general power o
married" The words 'bequeath or devise,
enabling her to dispose OF her property at hel
death, and the word 'alienate" to dispose o
1t during her life.
II it not plain that the grant of the power K
acquire and ''alienate" property gave at th'
same time the power to contract, so far. a.
least, as was necessary 10 the act of acquiring
or OF alternating? 1t is not allowable to as
sumo that constitutional provision woult
give power without giving also the means
necessary TO execute 1t. AS 1t seems TO me
The power to purchase and ALLEVIATE necessari
y carries the power to make contract II
respect to the property. In my Judgment, th'
power OF a married woman to contract ir
respect TO her separate estate was not giver
to her by any Act Of the Legislature, but by
the Constitution Itself, which gave her th'
EXPRESS powers w uOlu Ill HcI OWi
name, and to "alienate" 1t, and all power
n necessary In executing these expressly given
This was certainly the contcmporaneoui
construction. In 1870 the Legislature passet
the "Act to carry into effect the provisions o
the Constitution in relation to the rights o
married women which, after repeating th
very words OF the Constitution, then, in Orde
TO make the matter more clear and full, pro
ceeded as follows: "a married woman shall
have power to bequeath, devise or convey he
co n manner
the same extent as If she we're unmarried,
Il and oil deeds, mortgages and legal In
struments Of whatever kind shall be execut
ed by her in the same manner and have th'
same legal force and effect as II she were un
married. A married woman shall have th'
right to purchase any species of property IL
her own name and to take proper legal con
veyance therefor, and to contract and be con
tracted with the same manner as If the were
unmarried" &c.
In giving Interpretation to this Act in tn.
case OF Pelzer, Rodgers & Co. VS.. Campbell q
Co., 10 8. e., 591, this Court, In adverting tn tn
than those OF the Constitution, said: at Il
plain that these apparent additions were
nothing more than stuting fully and particu
lurly what was properly inferable from th'
bequeath or alienate." SO as to the thlrc
section: Can 1t be fairly, and with entire
confidence, affirmed that the powers express
ly given In the Constitution to acquire pro
otherwise, do not include and authorize thu
subordinate powers specified by the Act tt
purchase property In her own name, and take
proper legal conveyunccs therefor, and t.
contract and be contracted? 1t Is asked
with some force, how could she purchase OF
convey without the power to contract? 1t Is
insisted that the particulars OF the Act are
nothing more than the filling up OF the gen
eral outline indicated by the Constitution
&C., page 592. See also the case Of Witsell VS.
Charleston, 8. c., 50.
The Constitution gives to n married WON an
the express power to "alicnate" her separate
estate. What does that mean? The word
"alienate" does not express any particular
form Of transfer, but Is II general term and
embraces oil the forms of transfer known tc
tie law, on the principle that the whole In
cludes all It's parts.